Maybe Doug is just very convincing?
________________________________ From: religionlaw-boun...@lists.ucla.edu <religionlaw-boun...@lists.ucla.edu> on behalf of Ira Lupu <icl...@law.gwu.edu> Sent: Friday, April 28, 2017 9:21 AM To: Law & Religion issues for Law Academics; rtut...@law.gwu.edu Subject: Re: Making sense of Hosanna-Tabor (and the absurd nursing-worshipper hypo) Marty's excellent and probing questions deserve a reply, and at length. Bob Tuttle is not on this list, but he and Marty live within 15 minutes of each other and me, and the three of us will have that conversation sometime soon, face to face. I will add only that Bob and I discuss Chris Lund's very good article in our "mystery of unanimity" piece. And I will assert that no one else has even tried to explain the Court's very surprising unanimity in Hosanna-Tabor. On Fri, Apr 28, 2017 at 7:18 AM Marty Lederman <martin.leder...@law.georgetown.edu<mailto:martin.leder...@law.georgetown.edu>> wrote: I agree entirely with Chip that the Court in H-T eschewed Sherbert/Yoder-type balancing. The important questions going forward, however, are (i) why it did so -- i.e., what the justification is for the church's absolute immunity w/r/t "ministers" and antidiscrimination laws; and (ii) whether that rationale is likewise implicated as to other sorts of laws, and persons other than ministers. The greatest virtue (among many) of Chip and Bob's article, I think, is that they tie the decision in H-T to the line(s) of cases in which the Court has held that the state cannot evaluate --is not capable of evaluating -- certain kinds of religious questions, which we can denominate "exclusively ecclesiastical questions." For example: The state may not -- cannot -- assess whether and to what extent Person X adequately or effectively conveys the faith (e.g., the word of God) to parishioners (or to students), or whether, e.g., Cheryl Perich has or has not violated Lutheran tenets. Chip and Bob's shorthand for such things, as I understand it, is that the state cannot assess an individual's "fitness" for the ministry (from the perspective of the church). I agree with this. Likewise, I agree that the state could not assess the impact upon congregational prayer of the presence of nursing women. That is to say, the state must accept as true the church's conclusion (i) that Cheryl Perich violated Lutheran precepts (indeed, that fact was undisputed -- by filing an EEOC claim, she did, indeed, breach a church rule, based in scripture, that such disputes be settled without resort to civil authorities); (ii) that Perich's violation (and/or her other conduct) made her incapable of adequately conveying the faith to students, and generally "unfit" for such a role; and (iii) that the religious functions/effectiveness of prayer are undermined by the presence of nursing women. The state should (or must) also accept the church's judgment that the functions in question (e.g., inculcating the faith to students in H-T; congregational prayer in Steve's hypo) are of supreme importance to the church's religious mission. But those things only go so far to resolving how the cases should come out. We could--and must--defer to the Church on all of the relevant religious question, and thus must accept the proposition that retaining Perich as a called teacher would undermine its ability to inculcate the faith, or that the presence of nursing women will, for whatever reason, make communal prayer less effective. And I'll accept for present purposes the related notion that we must, too, accept the church's conclusions that these are very damaging harms to its religious mission--harms that the state has no business second-guessing. OK, but now we must still decide whether the ADA's prohibition on retaliation can and should apply notwithstanding this (conceded) harm to the church. And however one thinks we ought to resolve that question, the important point I'm trying to stress here is that that assessment does not require the state to answer any "exclusively ecclesiastical questions." Such constituent ecclesiastical questions are all already answered, in the church's favor (which is different from the case of another, nonreligious employer, where the court could critically assess whether the law would actually have the impact on productivity, etc., that the employer claims). We still need to decide, however, whether the civil law should trump the harms to the church--harms that we must accept as a given--particularly if the requested remedy does not include retention as a minister (e.g., if Perich were asking only for back pay, or for retention as a lay (not called) teacher). This might be made clearer by looking at two related hypos, both of which the Court in effect reserved in H-T (i.e., that the Court conceded are not necessarily governed by the decision in H-T): 1. A common-law contract claim in Perich's case, in which the contract includes a promise by the church that the minister retains all statutory rights to file EEOC claims. 2. A Fair Labor Standards statute that prohibits persons under 18 from working more than 20 hours a week, as applied to a church that claims that a 15-year-old is most fit to be its minister, and that also claims that the minister's effectiveness, in performing ministerial/pastoral functions (e.g., inculcating the fatih; leading the congregation), requires that she be available "on call," which amounts to 60 or so hours a week. In all four cases -- Perich's ADA claim; Steve's never-to-be-enacted statute that prohibits exclusion of nursing women from all places where people gather, including church pews; Perich's contract claim; and Chris's "minor minister" FLSA claim -- the courts, and other civil authorities, must accept as a given the church's assessment of who is "fit" to be a minister, and under what circumstances, and must also accept the church's assessment of the grievously detrimental impact that all four laws will have on its ability to inculcate the faith. At that point, I think we (i.e., courts/legislators/officials) still must decide, in all four cases, whether application of the law in question is important enough to override that (accepted) impact on the church's interests in religious fitness and effectiveness of ministry/prayer. And, importantly, that decision does not require the state to assess any religious questions that are not the proper subject of civil interrogation. We might, for instance, decide that any such detrimental impact on the church's ability to minister to the faithful, or to convene congregational prayer, must be honored--that the First Amendment gives the church the right to disregard any law (or all four of these laws, anyway) that has such an impact (again, accepting the church's judgment on that impact assessment). Or, alternatively (as Smith would suggest), that the law takes precedence notwithstanding the impact on the church's ministry/prayer functions (in the same way that the Court in effect accepted the fact that the Oregon peyote law would prevent the NAC from engaging in its sacramental ceremonies). What I still don't quite understand, in Bob and Chip's argument, is why some but not all of the four claims would implicate ecclesiastical questions (I'd think it's either all or--my view--none); and, more generally, why two of the four cases should be treated differently from the other two. On Thu, Apr 27, 2017 at 9:39 PM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: Thanks for the kind words, Marty. Now look at your formulation: "We [the state] accept your word that nursing women are not 'entitled' to worship as a matter of religious precepts. We will not second-guess that ecclesiastical question. Nevertheless, we have concluded that the nondiscrimination norm is more important than honoring religious notions of 'entitlement.' Therefore you can't exclude such women." That approach is perfectly inconsistent with the "no balancing" paragraph that Chris Lund cites from the Hosanna-Tabor. Marty's approach fits very well with pre-Smith Free Exercise law, but that's been wiped out by Smith. The Court in Hosanna-Tabor says Smith does not apply in a ministerial exception case. Why? Because who is fit for ministry, like who may attend a particular worship service, cannot be a matter for state decision. Chris says this is a matter of church freedom, which it is, but then he has to face the question of why isn't every question a church decides a matter of church freedom (no balancing, and the church always wins). If you read the article (Marty and Chris have), you will see how deeply grounded the "ecclesiastical question" doctrine is grounded in 1) Supreme Court precedent (church property and personnel cases, all the way back to Watson v. Jones) and 2) widespread, continuous lower court adherence in the wake of Hosanna-Tabor. It rests on both the Free Exercise Clause (freedom to control the conditions of worship -- who leads, and who may attend), and the Establishment Clause (state is not competent to prescribe the appropriate participants in worship). We didn't make this up; we found it deeply in the law. Many others who have defended Hosanna-Tabor are making stuff up about some doctrine of institutional church autonomy that just doesn't exist. On Thu, Apr 27, 2017 at 9:17 PM, Christopher Lund <l...@wayne.edu<mailto:l...@wayne.edu>> wrote: I don’t know whether anything rides on this in terms of results—maybe there is no need to get into it—but I think Hosanna-Tabor is just as much about the rights of religious organizations as it is about judicial competence. Hosanna-Tabor says, quoting Kedroff, that “[t]he Constitution guarantees religious bodies independence from secular control or manipulation—in short, power to decide for themselves, free from state interference, matters of church government as well as those of faith and doctrine.” It doesn’t use the phrase “church autonomy.” But why isn’t that a pretty decent shorthand for what the Court is talking about here? Throughout its opinion, the Court says things like “the Free Exercise Clause . . . protects a group’s right to shape its own faith and mission through its appointments” and “the First Amendment itself . . . gives special solicitude to the rights of religious organizations.” There are a bunch of similar statements about churches’ “rights” or “freedoms” or “interests.” So why are we hesitant to use the language of rights here? I must be missing something. Look at the last paragraph of the opinion: The interest of society in the enforcement of employment discrimination statutes is undoubtedly important. But so too is the interest of religious groups in choosing who will preach their beliefs, teach their faith, and carry out their mission. When a minister who has been fired sues her church alleging that her termination was discriminatory, the First Amendment has struck the balance for us. The church must be free to choose those who will guide it on its way. The judgment of the Court of Appeals for the Sixth Circuit is reversed. There are two interests, says the Court—society’s interest and the church’s interest.* And the church’s interest triumphs, says the Court. The church must be free to choose those who guide it. There is no expressed concern in that paragraph about judicial incompetence. The expressed concern is about the church’s rights. Again, I’m not objecting to the results to which Chip’s formulation leads. I don’t know quite where it leads. A broad idea of Chip’s “exclusively ecclesiastical questions” could lead to a very robust understanding of Hosanna-Tabor. I take that to be precisely what Marty was fearing in his most recent post. Best, Chris *Interest balancing (cough, cough). ___________________________ _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Sent from Gmail Mobile F. Elwood & Eleanor Davis Professor of Law George Washington University
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
